Veridian Credit Union v. Eddie Bauer LLC

Filing 69

ORDER granting in part and denying in part Defendant Eddie Bauer LLC's 40 Motion to Dismiss; Veridian may file an amended complaint that is consistent with court's rulings herein. Signed by Judge James L. Robart.(SWT)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 VERIDIAN CREDIT UNION, 10 CASE NO. C17-0356JLR ORDER ON DEFENDANT’S MOTION TO DISMISS Plaintiff, 11 v. 12 EDDIE BAUER, LLC, 13 Defendant. 14 15 INTRODUCTION Before the court is Defendant Eddie Bauer, LLC’s (“Eddie Bauer”) motion to 16 17 dismiss (2d MTD (Dkt. # 40)) Plaintiff Veridian Credit Union’s (“Veridian”) first 18 amended putative class action complaint (FAC (Dkt. # 36)).1 The court has considered 19 Eddie Bauer’s motion, Veridian’s response (Resp. (Dkt. # 53)), Eddie Bauer’s reply 20 // 21 Veridan’s motion for class certification is not due until April 25, 2018. (10/17/17 Order (Dkt. # 66).) 1 22 ORDER - 1 1 (Reply (Dkt. # 57)), the relevant portions of the record, and the applicable law. Being 2 fully advised,2 the court GRANTS in part and DENIES in part Eddie Bauer’s motion. 3 BACKGROUND 4 Veridian alleges the following pertinent facts in its first amended complaint:3 5 Eddie Bauer is headquartered in Washington but operates approximately 370 6 stores throughout the United States. (FAC ¶ 12.) Eddie Bauer accepts credit and debit 7 cards for payment from customers at it point-of-sale (“POS”) registers. (Id. ¶ 17.) In 8 January 2016, hackers accessed Eddie Bauer’s POS systems and installed malicious 9 software (or “malware”) that infected every Eddie Bauer store in the United States and 10 Canada (“the Data Breach”). (Id. ¶ 29.) Through this malware, hackers stole credit and 11 2 12 13 14 15 16 17 18 19 20 21 22 The parties have requested oral argument, but the court has thoroughly reviewed the parties’ briefing and considers oral argument to be unnecessary. The court, therefore, denies the parties’ requests. See Local Rules W.D. Wash. LCR 7(b)(4) (“Unless otherwise ordered by the court, all motions will be decided by the court without oral argument.”). Eddie Bauer asks the court to take judicial notice of portions of Veridian’s website. (See RFJN (Dkt. # 41); Nelson Decl. (Dkt. # 42) ¶ 2, Ex. 1 (attaching pages of Veridian’s website).) Veridian asks the court to deny Eddie Bauer’s request because it “improperly offers facts, which are incomplete.” (Resp. at 8 n.10.) In addition, Veridian offers a declaration of its senior legal counsel to counter facts asserted by Eddie Bauer based on the pages Eddie Bauer submits from Veridian’s website. (See Resp. at 5, 8 n.10, 28 (citing Slessor Decl. (Dkt. # 54).) The court denies Eddie Bauer’s request that it take judicial notice of certain pages from Veridian’s website. Although a court may consider materials that are properly the subject of judicial notice under Federal Rule of Evidence 201 on a motion to dismiss, see Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001), pages from a party’s website generally do not meet those standards, see Spy Optic, Inc. v. Alibaba.Com, Inc., 163 F. Supp. 3d 755, 763 (C.D. Cal. 2015) (“[P]rivate corporate websites, particularly when describing their own business, generally are not the sorts of sources whose accuracy cannot reasonably be questioned.”) (quoting Victaulic Co. v. Tieman, 499 F.3d 227, 237 (3d Cir. 2007) (internal quotation marks omitted). The court also declines to consider the declaration offered by Veridian. (See Slessor Decl.) “As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee, 250 F.3d at 688 (internal quotation marks and citations omitted). Veridian offers no exception to this general rule that would permit the court to consider its counsel’s declaration (see generally Resp.), and accordingly the court declines to do so. 3 ORDER - 2 1 debit card data from Eddie Bauer’s systems and sold it to other individuals who made 2 fraudulent transactions on those payment cards. (Id. ¶¶ 7, 25, 29, 32, 35-36, 96-97.) 3 Veridan is an Iowa-chartered credit union with its principal place of business in 4 Iowa. (FAC ¶ 11.) Veridian issued payment cards compromised in the Data Breach and 5 alleges that it suffered significant property damage to the unique data included on the 6 payment cards (including the ruination of the payment card itself) and financial losses in 7 connection with covering its customers’ losses due to the Data Breach and in reissuing 8 credit and debit cards to its customers. (Id. ¶¶ 8, 22, 96-98, 135.) Veridian alleges that 9 the Data Breach and Veridian’s injury were the foreseeable results of Eddie Bauer’s 10 inadequate data security measures, which Eddie Bauer knew were insufficient to protect 11 against recognized threats, and Eddie Bauer’s refusal to implement industry-standard 12 security measures due to the cost of such measures. (Id. ¶¶ 39-92.) 13 Veridian filed a putative class action complaint against Eddie Bauer on March 7, 14 2017. (Compl. (Dkt. # 1).) Eddie Bauer filed a motion to dismiss on April 21, 2017. 15 (MTD (Dkt. # 28).) On June 5, 2017, instead of responding to Eddie Bauer’s motion 16 directly, Veridian filed a first amended putative class action complaint. (See FAC.) On 17 June 15, 2017, Eddie Bauer filed a motion to dismiss Veridian’s first amended complaint. 18 (See 2d MTD.) 19 In its first amended complaint, Veridian alleges claims against Eddie Bauer for (1) 20 negligence (FAC ¶¶ 119-28), (2) negligence per se (id. ¶¶ 129-35), (3) declaratory and 21 injunctive relief (id. ¶¶ 136-43), (4) violation of RCW 19.255.020 (FAC ¶¶ 144-51), and 22 (5) violation of Washington’s Consumer Protection Act (“CPA”), RCW ch. 19.86 (FAC ORDER - 3 1 ¶¶ 152-65). Veridian alleges that Washington law applies to its claims. (Id. ¶¶ 112-18.) 2 Eddie Bauer, however, asserts that Iowa law applies. (2d MTD at 3-9.) 3 Veridan also brings its first amended complaint as a putative class action. (Id. 4 ¶¶ 99-111.) Specifically, Veridian brings its action “individually and on behalf of all 5 other financial institutions similarly situated” under Federal Rule of Civil Procedure 23. 6 (Id. ¶ 99.) Veridian defines its putative class as: All Financial Institutions − including, but not limited to, banks and credit unions − in the United States (including its Territories and the District of Columbia) that issue payment cards, including credit and debit cards, or perform, facilitate, or support card issuing services, whose customers made purchases from Eddie Bauer stores from January 1, 2016 to the present (the “Class”). 7 8 9 10 (Id.) 11 The court now considers Eddie Bauer’s motion to dismiss. 12 ANALYSIS 13 A. Legal Standard 14 Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for 15 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 16 Although “detailed factual allegations” are not required, a complaint must include “more 17 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009). In other words, a complaint must have sufficient factual 19 allegations to “state a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. 20 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the 21 pleaded factual content allows the court to draw the reasonable inference that the 22 ORDER - 4 1 defendant is liable for the misconduct alleged.” Id. Under Rule 12(b)(6), dismissal can 2 be based on “the lack of a cognizable legal theory or the absence of sufficient facts 3 alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 4 696, 699 (9th Cir. 1990). 5 When considering a motion to dismiss under Rule 12(b)(6), the court construes the 6 complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. 7 Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must therefore 8 accept all well-pleaded facts as true and draw all reasonable inferences in the plaintiff’s 9 favor. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 10 1998). 11 B. 12 Choice of Law The court first addresses which jurisdiction’s law applies to Veriidan’s claims. 13 Veridian asserts that Washington law governs its claims (FAC ¶¶ 112-18; Resp. at 6-8), 14 while Eddie Bauer argues for the application of Iowa law (2d MTD at 5-9). 15 A “federal court sitting in diversity ordinarily must follow the choice-of-law rules 16 of the State in which it sits.” Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of 17 Tex., --- U.S. --- , 134 S. Ct. 568, 582 (2013) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 18 313 U.S. 487, 494-96 (1941)). “This applies to actions brought under the Class Action 19 Fairness Act [(“CAFA”), 28 U.S.C. § 1332(d)(2),] as well, since CAFA is based upon 20 diversity jurisdiction.” In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 21 1155, 1167-68 (N.D. Cal. 2016) (quoting In re NVIDIA GPU Litig., No. C 08-04312, 22 2009 WL 4020104, at *5 (N.D. Cal. Nov. 19, 2009)). Here, Veridian asserts that the ORDER - 5 1 court has original jurisdiction based on CAFA. (FAC ¶ 13.) Accordingly, the court 2 follows the choice-of-law rules of Washington. 3 Washington employs a two-step approach to choice of law questions. Under 4 Washington’s choice-of-law rules, the court first determines whether an actual conflict 5 exists between Washington and other applicable state law. See Burnside v. Simpson 6 Paper Co., 864 P.2d 937, 941 (Wash. 1994). In the absence of a conflict, Washington 7 law applies. See id.; DP Aviation v. Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d 8 829, 845 (9th Cir. 2001) (applying Washington law where no conflict was shown). If an 9 actual conflict exists, the court then determines the forum that has the “most significant 10 relationship” to the action to determine the applicable law. See Johnson v. Spider Staging 11 Corp., 555 P.2d 997, 1000-01 (Wash. 1976). 12 1. An Actual Conflict 13 “An ‘actual conflict’ exists ‘between the laws or interests of Washington and the 14 laws or interests of another state’ when the . . . states’ laws could produce different 15 outcomes on the same legal issue.” Kelley v. Microsoft Corp., 251 F.R.D. 544, 550 16 (W.D. Wash. 2008) (quoting Erwin v. Cotter Health Ctrs., 167 P.3d 1112, 1120 (Wash. 17 2007)). Veridian asserts in a summary fashion that only a false conflict exists between 18 the laws or interests of Washington and those of Iowa. (See Resp. at 7.) However, as 19 discussed below, the court is persuaded by Eddie Bauer’s detailed analysis that an actual 20 conflict exists. (See 2d MTD at 4-5.) The court discusses each of Veridian’s claims in 21 turn. 22 // ORDER - 6 1 a. Negligence The court first considers Veridian’s negligence claim. (FAC ¶¶ 119-28.) In Iowa, 2 3 “[a]s a general proposition, the economic loss rule bars recovery in negligence when the 4 plaintiff has suffered only economic loss.” Annett Holdings, Inc. v. Kum & Go, L.C., 801 5 N.W.2d 499, 503 (Iowa 2011) (citing Neb. Innkeepers, Inc. v. Pittsburgh-Des Moines 6 Corp., 345 N.W.2d 124, 126 (Iowa 1984)). Indeed, in Iowa, “[t]he well-established 7 general rule is that a plaintiff who has suffered only economic loss due to another’s 8 negligence has not been injured in a manner which is legally cognizable or 9 compensable.” Id. Further, in Iowa, the economic loss rule “is by no means limited to 10 the situation where the plaintiff and the defendant are in direct contractual privity.” Id. at 11 504. 12 The Washington Supreme Court, however, no longer applies the economic loss 13 rule but rather the “independent duty doctrine.” See Affiliated FM Ins. Co. v. LTK 14 Consulting Servs., Inc., 243 P.3d 521, 526 (Wash. 2010). In Washington, “”[t]he 15 independent duty doctrine . . . maintain[s] the boundary between torts and contract in the 16 place of the economic loss rule.” Donatelli v. D.R. Strong Consulting Eng’rs, Inc., 312 17 P.3d 620, 623 (Wash. 2013) (internal quotation marks omitted) (citing Elcon Constr., Inc. 18 v. E. Wash. Univ., 273 P.3d 965, 969 (Wash. 2012)). For example, under Washington’s 19 independent duty doctrine, a plaintiff can bring a tort claim for conduct arising out of a 20 contractual relationship if the defendant owed him or her a duty of care independent of 21 the contract. Eastwood v. Horse Harbor Found., Inc., 241 P.3d 1256, 1262 (Wash. 22 2010). ORDER - 7 1 In addition, unlike Iowa, the independent duty doctrine is not a rule of general 2 application in Washington. Elcon Constr., 273 P.3d at 969. The Washington Supreme 3 Court has taken “great pains to limit” the doctrine and to “clarify that it does not bar tort 4 remedies except in fairly unusual circumstances.” Reading Hosp. v. Anglepoint Grp., 5 Inc., No. C15-0251-JCC, 2015 WL 13145347 at *3 (W.D. Wash. May 26, 2015). Indeed, 6 the Washington Supreme Court has applied the doctrine only “to a narrow class of cases, 7 primarily limiting its application to claims arising out of construction on real property 8 and real property sales,” Elcon Constr., 273 P.3d at 969, and specifically directs that the 9 doctrine should not apply “‘unless and until [the Washington Supreme Court] has . . . 10 decided otherwise,’” id. at 969-70 (quoting Eastwood, 241 P.3d at 1276). Due to the 11 marked distinctions between the economic loss rule in Iowa and the independent duty 12 doctrine in Washington, as well as the scope of the application of these rules in each 13 state, the court concludes that there is an actual conflict between the law or interests of 14 Iowa and Washington with respect to Veridian’s negligence claim.4 15 b. Negligence Per Se 16 Veridian asserts a separate claim for negligence per se. (FAC ¶¶ 129-35.) Under 17 Iowa law, the violation of a statute may give rise to a claim for negligence per se. See 18 // 19 20 21 22 4 Veridian asserts that there is no actual conflict between the law of Washington and Iowa with respect to its negligence claim because neither the economic loss rule in Iowa nor the independent duty doctrine in Washington bars its claim. (See Resp. at 18-22.) Even assuming that Veridian is correct, however, the result would be the application of Washington law because in the absence of an actual conflict, Washington law applies. See Burnside, 864 P.2d at 941; DP Aviation, 268 F.3d at 845. This is the same result the court reached after applying “the most significant relationship” test. See infra § III.B.2. ORDER - 8 1 Winger v. CM Holdings, LLC, 881 N.W.2d 433, 448 (Iowa 2016) (quoting Wiersgalla v. 2 Garrett, 486 N.W.2d 290, 292 (Iowa 1992)) (“[I]f a statute or regulation . . . provides a 3 rule of conduct specifically designed for the safety and protection of a certain class of 4 persons, and a person within that class receives injuries as a proximate result of a 5 violation of the statute or regulation, the injuries would be actionable, as . . . negligence 6 per se.”) (internal quotation marks and citations omitted). In Washington, however, the 7 violation of a statute or the breach of a statutory duty is not considered negligence per se, 8 but may be considered by the trier of fact only as evidence of negligence. RCW 9 5.40.050. Thus, assuming Veridian can establish that Eddie Bauer violated a statute that 10 fell within Iowa’s negligence per se rule, it might be able to pursue such a claim under 11 Iowa law, but not under Washington law. Thus, an actual conflict exists between the law 12 of Iowa and Washington on this claim. 13 14 c. Declaratory and Injunctive Relief Veridian also asserts a claim for declaratory and injunctive relief. (FAC 15 ¶¶ 136-43.) Iowa law recognizes that an “injunction may be obtained as an independent 16 remedy by an action in equity, or as an auxiliary remedy in any action.” Iowa R. Civ. P. 17 1.1501. Indeed, “[u]nder Iowa law, a request for permanent injunctive relief alone can 18 serve as the underlying claim for a request for a temporary injunction in an equitable 19 action.” Johnson v. Moody, No. 416CV00449RGESBJ, 2016 WL 8839427, at *4 (S.D. 20 Iowa Nov. 14, 2016); see also Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 21 184 (Iowa 2005) (stating that “the plaintiff’s underlying claim is an equitable action for 22 permanent injunctive relief”). In contrast to Iowa’s law, Washington does not recognize ORDER - 9 1 a standalone claim for injunctive relief, but rather views an injunction as a form of relief 2 available for some causes of action. See, e.g., Hockley v. Hargitt, 510 P.2d 1123, 1132 3 (Wash. 1973) (distinguishing between a cause of action based on the CPA and the forms 4 of relief that are potentially available, including damages and an injunction); see also 5 Robinson v. Wells Fargo Bank Nat’l Ass’n, No. C17-0061JLR, 2017 WL 2311662, at *5 6 (W.D. Wash. May 25, 2017) (“Injunctive relief is available only if [the plaintiff] is 7 entitled to such a remedy on an independent cause of action.”). Indeed, Veridian 8 acknowledges that Iowa recognizes a “standalone” claim for injunctive relief while 9 Washington does not. (Resp. at 6 n.7.) Thus, there is an actual conflict between the laws 10 of Iowa and Washington with respect to this claim.5 11 d. Statutory Claims 12 Finally, Eddie Bauer asserts that there is an actual conflict between the law of 13 Iowa and Washington with respect to Veridian’s statutory claims. Veridian alleges a 14 claim based on RCW 19.255.020, which is a Washington statute that addresses 15 unauthorized cyber-intrusions on the account information of credit card and debit card 16 holders. (FAC ¶¶ 144-51.) There is no Iowa counterpart to this Washington statute. 17 Although Veridian acknowledges that Iowa recognizes a “standalone” claim for injunctive relief while Washington does not, Veridian nevertheless counters that it brings its claim for injunctive and declaratory relief not under state law, but rather under federal law—the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. (Resp. at 6 n.7 (“Plaintiff’s Declaratory Judgment Act claim plainly is not a standalone injunctive relief claim. And, as a federal cause of action, state law does not apply to this claim.”). The federal statute, however, also creates only a remedy and not an independent claim. See Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (“[The] Declaratory Judgment Act . . . only creates a remedy and is not an independent basis for jurisdiction.”); see also Ajetunmobi v. Clarion Mortg. Capital, Inc., 595 F. App’x 680, 684 (9th Cir. 2014) (“Declaratory and injunctive relief are remedies, not causes of action.”). 5 18 19 20 21 22 ORDER - 10 1 Veridian also alleges a statutory claim based on Washington’s CPA. (FAC ¶¶ 152-65.) 2 Unlike Washington’s CPA, however, Iowa’s Consumer Fraud Act (“CFA”) requires the 3 state attorney general to approve the filing of a class action lawsuit under the statute. 4 Iowa Code § 714H.7. Thus, the court concludes that an actual conflict exists as to the 5 law of the two states regarding Veridian’s substantive statutory claims.6 6 2. The State with the Most Significant Relationship 7 If an actual conflict exists, Washington requires application of the law of the 8 forum that has the “most significant relationship” to the action. See Johnson, 555 P.2d at 9 1000. Application of the “most significant relationship” test is a two-step process. See 10 id. First, the court determines which state has the most significant relationship to the 11 cause of action. Id. Second, if the relevant contacts to the cause are balanced, the court 12 then considers “the interests and public policies of potentially concerned states and . . . 13 the manner and extent of such policies as they relate to the transaction at issue.” Id. at 14 1001 (quoting Potlatch No. 1 Fed. Credit Union v. Kennedy, 459 P.2d 32, 35 (Wash. 15 1969)). 16 In determining the state with the most significant relationship to the occurrence 17 and the parties, the court considers “(a) the place where the injury occurred, (b) the place 18 where the conduct causing the injury occurred, (c) the domicil, residence, nationality, 19 place of incorporation and place of business of the parties, and (d) the place where the 20 Veridian argues that it has not asserted a claim under Iowa’s CFA and that as a non-resident it “may sue” under the CPA. (Resp. at 6 n.7.) The question, however, is not whether Veridian “may sue” under the CPA, but rather which law should apply to Veridian’s claim based on Washington’s choice-of-law rules. 6 21 22 ORDER - 11 1 relationship, if any, between the parties is centered.” Brewer v. Dodson Aviation, 447 F. 2 Supp. 2d 1166, 1175-76 (W.D. Wash. 2006) (discussing Washington law and citing the 3 Restatement (Second) of Conflict of Laws § 145(2) (1971)). The court’s approach is not 4 merely to count contacts, but rather to consider which contacts are the most significant 5 and where those contacts are found. Johnson, 555 P.2d at 1000. 6 7 a. The Place of the Injury Eddie Bauer asserts that the injury at issue occurred in Iowa because that is where 8 Veridian and the majority of its customers are located.7 (2d MTD at 6-7.) Veridian, 9 however, alleges that it “has thousands of checking, savings, and deposit customers 10 located in Iowa and throughout the United States, including hundreds of checking, 11 savings, and deposit customers located in Washington State.” (FAC ¶ 11.) Further, 12 Eddie Bauer’s argument ignores Veridian’s class allegations. (See Resp. at 8 n.10.) 13 Veridian alleges that the Data Breach harmed Eddie Bauer’s customers throughout the 14 United States and Canada. (FAC ¶ 1, 7, 60.) Veridian further alleges that Eddie Bauer’s 15 conduct injured not just Eddie Bauer’s customers, but various financial institutions, 16 which are similarly situated to Veridian, and also located throughout the United States. 17 (See FAC ¶¶ 8-9, 99.) 18 “In the case of personal injuries or of injuries to tangible things, the place where 19 the injury occurred is a contact that, as to most issues, plays an important role in the 20 selection of the state of the applicable law.” Restatement (Second) of Conflict of Laws 21 Eddie Bauer acknowledges that some of Veridian’s customers are located in Nebraska as well. (2d MTD at 7 & n.3.) 7 22 ORDER - 12 1 § 145, cmt. e (1971). “Situations do arise, however, where the place of injury will not 2 play an important role in the selection of the state of the applicable law. This will be so, 3 for example, when the place of injury can be said to be fortuitous . . . or when . . . injury 4 has occurred in two or more states.” Id.; see Kelley, 251 F.R.D. at 552 (“Here, the 5 Defendant’s allegedly unfair or deceptive acts caused injury throughout the country. The 6 location of the harm suffered is fortuitous.”). 7 Veridian alleges that Eddie Bauer’s conduct with respect to the Data Breach 8 caused injury in a variety of states throughout country (FAC ¶¶ 1, 7-9, 60, 99); thus, the 9 location of the alleged harm was fortuitous, and the place of injury does not play an 10 11 12 important role in the court’s choice of law analysis here. b. The Place Where the Conduct Causing the Injury Occurred Eddie Bauer argues that the location where the alleged conduct causing the injury 13 occurred is unknown because “[t]he location where the [cyber] attack was launched is 14 unknown” and Veridian fails to allege that the computer servers that were attacked are 15 located in Washington. (2d MTD at 7.) Again, Eddie Bauer misconstrues the crux of 16 Veridian’s allegations. Veridian is not suing the cyber attacker. Veridian is suing Eddie 17 Bauer for negligence and other misconduct related to its management’s decisions 18 concerning Eddie Bauer’s internal data security and the Data Breach. (See FAC 19 ¶¶ 113-15.) Veridian alleges that Eddie Bauer “orchestrated and implemented” the 20 decisions that lead to the Data Breach “at its corporate headquarters in Bellevue, 21 Washington,” and its failure to employ adequate data security measures “emanated from 22 [its] headquarters.” (Id. ¶¶ 113-14.) Based on these allegations, the court concludes that ORDER - 13 1 the place where the conduct alleged to have caused the injury occurred was in 2 Washington. 3 When the injury occurs in two or more states or the location of the injury is 4 fortuitous, the weight the court gives to the place where the alleged conduct causing the 5 injury occurred increases. Restatement (Second) of Conflict of Laws § 145, cmt. e 6 (1971) (“When the injury occurred in two or more states, or when the place of injury 7 cannot be ascertained or is fortuitous and, with respect to the particular issue, bears little 8 relation to the occurrence and the parties, the place where the defendant’s conduct 9 occurred will usually be given particular weight in determining the state of the applicable 10 law.”); Kelley, 251 F.R.D. at 552 (“[B]ecause the place of injury is fortuitous the Court 11 gives greater weight to Washington, the location of the source of the injury.”). Thus, the 12 court places particular weight on this factor in its choice of law analysis. 13 14 c. The Domicil, Residence, Nationality, Place of Incorporation and Place of Business of the Parties & the Place Where the Parties’ Relationship is Centered 15 The third factor the court considers is “the domicil, residence, nationality, place of 16 incorporation and place of business of the parties” Brewer, 447 F. Supp. 2d at 1175-76. 17 The fourth factor is “the place where the relationship, if any, between the parties is 18 centered.” Id. The court considers these factors together. 19 Eddie Bauer is a citizen of Washington, which is also where it maintains its 20 principal place of business. (FAC ¶ 13.) Veridian is an Iowa-chartered credit union with 21 its principal place of business in Iowa (id. ¶ 11), although if a nationwide class is certified 22 there will be plaintiffs domiciled in many states (see id. ¶ 99). “[T]he importance of ORDER - 14 1 these contacts depends largely upon the extent to which they are grouped with other 2 contacts.” Restatement (Second) of Conflict of Laws § 145, cmt. e (1971). The fact that 3 one of the parties is domiciled in a particular state is of little significance, but gains 4 significance if the domicile or principal place of business for all parties is located in the 5 same state. Id. Because there is no grouping of contacts in this instance, the court finds 6 this factor of minimal significance to its choice of law analysis. Further, the parties’ relationship is not centered in any one place. The parties did 7 8 not contract with one another.8 (Resp. at 20 (“[Veridian] never contracted (directly or 9 indirectly) for any products or services from Eddie Bauer . . . .”); 2d MTD at 10 n.9 10 (“[T]here is no direct contractual privity alleged between the parties.”).) Their 11 headquarters are in different states, and they both have customers throughout the country. 12 (See FAC ¶¶ 11-12.) Thus, the court finds that this factor bears little, if any, weight in 13 the court’s choice-of-law analysis. 14 The parties agree that neither of these factors should play a significant role in the 15 court’s choice of law analysis. (See 2d MTD at 8-9; Resp. at 8 (“As to the third and 16 fourth factors, the putative class is domiciled in all states, while Eddie Bauer is domiciled 17 in Washington, and thus ‘the parties’ relationship is not centered in any particular place 18 // 19 // 20 21 22 8 Veridian alleges that Eddie Bauer has a contractual relationship with payment card networks (like Visa and Mastercard), who, in turn, have relationships with card-issuing financial institutions like Veridian. (FAC ¶¶ 19-20.) ORDER - 15 1 because the parties did not contract with one another.’”) (quoting Kelley, 251 F.R.D. at 2 552).) Thus, these factors have little bearing on the court’s choice of law analysis. 3 4 d. Evaluating the Contacts The court is mindful that it is not to merely count contacts but to consider which 5 contacts are the most significant and where those contacts are found. Johnson, 555 P.2d 6 at 1000. Relying on this guidance, and summarizing its analysis of the relevant contacts 7 above, the court concludes that the place where the alleged conduct occurred which 8 caused the injury is the most significant contact for purposes of the court’s choice of law 9 analysis, and that place is Washington. The court gives greater weight to the location of 10 the alleged wrongful conduct because the location of the alleged injury is in multiple 11 states and is fortuitous. See supra §§ III.B.2.a, .b. As discussed above, the other contacts 12 are of little significance to the court’s analysis here. See supra § III.B.2.a, .c. Thus, the 13 state with the most significant relationship to this action is Washington, and its law 14 applies. 15 e. The Interests and Public Policies of the Most Concerned States 16 Assuming, arguendo, that the foregoing contacts were evenly balanced, the court 17 would still apply Washington law. “If the contacts are evenly balanced, the second step 18 of the analysis involves an evaluation of the interests and public policies of the concerned 19 states to determine which state has the greater interest in determination of the particular 20 issue.” Schmahl v. Macy’s Dep’t. Stores, Inc., No. CV-09-68-EFS, 2010 WL 3061526, at 21 *6 (E.D. Wash. July 30, 2010); Zenaida-Garcia v. Recovery Sys. Tech., Inc., 115 P.3d 22 1017, 1020 (Wash. Ct. App. 2005). This step turns on the purpose of the law and the ORDER - 16 1 issues involved. Kelley, 251 F.R.D. at 553. When “the primary purpose of the tort rule 2 involved is to deter or punish misconduct [and not merely to compensate the victim for 3 her injuries] . . . the state where the conduct took place may . . . [have the] most 4 significant relationship.” Id. (quoting Restatement (Second) of Conflict of Laws § 145, 5 cmt. c (1971)). 6 Washington has the paramount interest in applying its law to this action. In 7 addition to its negligence claims, Veridian also asserts claims based on RCW 19.255.020, 8 which is designed to fight unauthorized cyber-intrusions into credit card and debit card 9 holders’ data, and the CPA. (FAC ¶¶ 144-65.) The CPA targets all unfair trade 10 practices either originating from Washington businesses or harming Washington citizens. 11 Kelley, 251 F.R.D. at 553. Application of the CPA to Veridian’s claims effectuates the 12 broad deterrent purpose of CPA, especially as applied to one of Washington’s leading 13 corporate citizens. See id. (citing Restatement (Second) of Conflict of Laws § 145, cmt. c 14 (1971); RCW 19.86.920). The same is true of RCW 19.255.020, which applies to credit 15 card processors and businesses, rendering them potentially liable to financial institutions 16 if they fail to “take reasonable care to guard against unauthorized access to account 17 information.” Id. Thus, the court concludes that Washington law applies to this action 18 and now considers Eddie Bauer’s motion to dismiss each of Veridian’s claims.9 19 // 20 21 9 22 Because the court concludes that Washington law applies, it does not consider Eddie Bauer’s arguments to dismiss Veridian’s claims based on Iowa law. (See 2d MTD at 9-19.) ORDER - 17 1 C. 2 Negligence Per Se As noted above, Washington does not recognize negligence per se as a separate 3 cause of action. See supra § III.B.1.b. Although the violation of a statute or the breach 4 of a statutory duty “may be considered by the trier of fact as evidence of negligence,” 5 RCW 5.40.050, Veridian may not assert a separate cause of action for negligence per se 6 in Washington. Accordingly, the court dismisses this cause of action (see FAC 7 ¶¶ 129-35) with prejudice and without leave to amend. 8 D. 9 Declaratory and Injunctive Relief As also noted above, Veridian asserts a claim for injunctive and declaratory relief 10 based on the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. (See Resp. at 6 11 n.7); see supra n.4. As the court explained, the Declaratory Judgment Act “only creates a 12 remedy.” See Confederated Tribes, 873 F.2d at 1225. Further, “[a] permanent injunction 13 is a form of relief that the court may grant when a plaintiff succeeds on a substantive 14 cause of action that lends itself to this remedy.” Dinkins v. Schinzel, No. 15 217CV01089JADGWF, 2017 WL 4891524, at *2 (D. Nev. Oct. 30, 2017). Although 16 Veridian may continue to request declaratory and injunctive relief in an amended 17 complaint, these items are requests for relief and not separate legal causes of action. See 18 Barton v. Captial One Bank (USA), N.A., No. 12-cv-05412-JST, 2013 WL 12173918, at 19 *8 (N.D. Cal. Apr. 4, 2013); Santos v. Countrywide Home Loans, No. 2:09–02642 WBS 20 DAD, 2009 WL 3756337, at *5 (E.D. Cal. Nov. 6, 2009) (“Declaratory and injunctive 21 relief are not independent claims, rather they are forms of relief.”). Thus, the court 22 ORDER - 18 1 dismisses Veridian’s cause of action for declaratory and injunctive relief, but with leave 2 to amend as described above.10 (See FAC ¶¶ 136-43.) 3 E. 4 Negligence Under Washington law, to state a claim for negligence, Veridian must adequately 5 allege “(1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting 6 injury, and (4) the breach as the proximate cause of the injury.” Degel v. Majestic Mobile 7 Manor, 914 P.2d 728, 731 (Wash. 1996). The existence of a duty “is a question of law 8 and depends on mixed considerations of logic, common sense, justice, policy, and 9 precedent.” Synder v. Med. Serv. Corp., 35 P.3d 1158, 1164 (Wash. 2001). “Duty in a 10 negligence action is a threshold question” and “may be predicated ‘on violation of statute 11 or of common law principles of negligence.’” Jackson v. City of Seattle, 244 P.3d 425, 12 428 (Wash. Ct. App. 2010) (quoting Burg v. Shannon & Wilson, Inc., 43 P.3d 526, 530 13 (Wash. Ct. App. 2002)); Alhadeff v. Meridian on Bainbridge Island, LLC, 220 P.3d 1214, 14 1222 (Wash. 2009) (same). 15 Eddie Bauer argues that Veridian’s negligence claim must be dismissed because 16 Eddie Bauer owes no duty to Veridian. (2d MTD at 20-25.) Veridian argues that Eddie 17 Bauer owes it a duty predicated on common law principles of negligence and on the 18 19 20 21 22 Eddie Bauer also asks the court to dismiss Veridian’s request for declaratory and injunctive relief because it owes no duty to Veridian and “[t]here is no real, immediate, and substantial risk of another data breach as required for declaratory or injunctive relief.” (Reply at 15; see also 2d MTD at 26-27.) As noted above, Veridian cannot assert these forms of relief as separate legal causes of action. See supra § III.D. But construing Veridian’s allegations for declaratory and injunctive relief as forms of relief only, the court declines Eddie Bauer’s invitation to dismiss them at this time. The court, however, may reconsider its ruling in the context of a motion for summary judgment if appropriate. 10 ORDER - 19 1 violation of two statutes. (Resp. at 2-3, 9-17.) The court analyzes each basis for a duty in 2 turn. 3 1. Duty Based on Common Principles of Negligence 4 Eddie Bauer first asserts that under common law principles of negligence in 5 Washington it owes no duty to Veridian as a matter of law. (2d MTD at 20-24.) Eddie 6 Bauer argues that Veridian, as “a sophisticated financial institution,” is not within the 7 class of individuals to whom Eddie Bauer owes a duty. (2d MTD at 20-21.) Indeed, 8 Eddie Bauer argues that, by suing for damages allegedly incurred in the Data Breach, 9 Veridian improperly seeks to impose tort liability on Eddie Bauer for the “criminal attack 10 11 of a third-party.” (Id. at 21.) Eddie Bauer is correct that under Washington law “an actor ordinarily owes no 12 duty to protect an injured party from harm caused by the criminal acts of third parties.” 13 Parrilla v. King Cty., 157 P.3d 879, 884 (Wash. Ct. App. 2007). Indeed, the Washington 14 Supreme Court has “not yet found a duty to protect a third party from the criminal acts of 15 another absent a special relationship.” Robb v. City of Seattle, 295 P.3d 212, 216 (Wash. 16 2013). Nevertheless, the Washington Court of Appeals has found that the affirmative act 17 of an alleged tortfeaser combined with the foreseeability and magnitude of the risk 18 created by the alleged torfeaser may justify imposing such a duty under the Restatement 19 (Second) of Torts § 302B, comment e. Id. (citing Parrilla, 157 P.3d at 884-85). The 20 crux of the issue lies in the distinction between an action or “misfeasance,” on the one 21 hand, and an omission or “nonfeasance,” on the other. Id. As the Washington Supreme 22 Court has explained: ORDER - 20 1 2 3 [A]n actor might still have a duty to take action for the aid or protection of the plaintiff in cases involving misfeasance (or affirmative acts), where the actor’s prior conduct, whether tortious or innocent, may have created a situation of peril to the other. Liability for nonfeasance (or omissions), on the other hand, is largely confined to situations where a special relationship exists. 4 Id. at 217. Thus, to impose liability on Eddie Bauer for the criminal actions of a hacker 5 in creating the Data Breach, Veridian must either allege that a “special relationship” 6 exists between Veridian and Eddie Bauer, or that Eddie Bauer’s action surrounding the 7 Data Breach constituted malfeasance, rather than merely nonfeasance. 8 Veridian asserts that a “special relationship” exists between itself and Eddie Bauer 9 because Eddie Bauer “voluntarily assumed the duty to protect [Veridian’s] property, 10 i.e.[,] its payment card data, and [Veridian] relied on [Eddie Bauer] to keep its property 11 safe.” (Resp. at 14 (citing Merriman v. Am. Guarantee & Liab. Ins. Co., 396 P.3d 351, 12 363-64 (Wash. Ct. App. 2017)).) Veridian provides scant analysis of Merriman and the 13 court does not view Merriman as analogous. In Merriman, the Washington Court of 14 Appeals found that an insurance adjuster owed a duty to certain insureds based on 15 specific duties that the adjuster had voluntarily assumed. 396 P.3d at 367. The Court of 16 Appeals, however, based its decision in part on “whether providing a legal duty of care 17 would advance or frustrate relevant insurance law.” Id. at 366. “Both courts and the 18 legislature have recognized that insurance contracts are imbued with public policy 19 concerns.” Nat’l Sur. Corp. v. Immunex Corp., 297 P.3d 688, 690 (Wash. 2013). Those 20 same public policy concerns are not at issue here. Veridian cites no other Washington 21 case in support of its assertion that the court should find a “special relationship” between 22 ORDER - 21 1 two sophisticated business entities engaged in the type of non-contractual relationship 2 alleged here. (See Resp. at 14.) Given the paucity of Washington legal authority, the 3 court concludes that Veridian’s allegations of trust and reliance between two 4 sophisticated business entities are insufficient to establish a special relationship. 5 Concluding otherwise would stretch Washington law beyond its current confines. 6 Assuming that there is no “special relationship” between Veridian and Eddie 7 Bauer, Eddie Bauer may still have a duty to Veridian if Eddie Bauer engaged in an 8 affirmative act or “misfeasance” such that it “created a situation of peril” for Veridian. 9 See Robb, 295 P.3d at 216. Veridian’s alleges myriad failures on Eddie Bauer’s part. For 10 example, Veridian alleges that Eddie Bauer failed to “maintain adequate data security 11 measures, implement best practices, upgrade security systems, and comply with industry 12 standards,” “implement chip-based card technology, otherwise known as EMV 13 technology,”11 “take reasonable steps to protect its computer systems from being 14 breached,” “timely upgrade its POS software to remedy security vulnerabilities,” “take 15 reasonable steps to upgrade and protect Payment Card Data,” “ensure that its IT systems 16 were adequately secured,” “make necessary changes to its security practices and 17 protocols,” “take necessary measures to maintain an adequate firewall,” “comply with 18 industry standards for data security,” and promptly notify its customers or other affected 19 entities concerning the Data Breach. (See FAC ¶¶ 2-3, 5-6, 8, 39, 48, 51, 54, 73, 82.) 20 Indeed, Veridian expressly alleges that “[t]he key wrongdoing at issue in this litigation” 21 22 11 “EMV” stands for Europay, MasterCard, and Visa. (FAC ¶ 5.) ORDER - 22 1 is “Eddie Bauer’s failure to employ adequate data security measures.” (Id. ¶ 114.) These 2 allegations comprise numerous omissions or nonfeasance on the part of Eddie Bauer, but 3 they do not describe misfeasance or any affirmative act “that created a situation of peril” 4 for Veridian. See Robb, 295 P.3d at 216. Because Eddie Bauer can only be held liable 5 for its alleged omissions or nonfeasance in the context of a “special relationship,” see id., 6 the court concludes that Eddie Bauer does not owe a duty to Veridian based on common 7 law principles of negligence in Washington. 8 2. Duty Predicated upon Violation of a Statute 9 The court’s analysis of whether Veridian has adequately alleged that Eddie Bauer 10 owes it a duty, however, is not yet complete. Veridian also alleges that Eddie Bauer 11 owes it a duty predicated upon two statutes: (1) Section 5 of the Federal Trade 12 Commission Act of 1914 (“FTC Act”), 15 U.S.C. § 45; and (2) RCW 19.255.020, a 13 Washington statute designed to address damage to financial institutions from the 14 unauthorized cyber-intrusions of the account information of credit card and debit card 15 holders. The court addresses the existence of a duty predicated upon each of these 16 statutes in turn. 17 As previously noted, in Washington, the violation of a statute or the breach of a 18 statutory duty is not considered negligence per se, but may be considered by the trier of 19 fact as evidence of negligence. RCW 5.40.050; see supra § § III.B.1.b. In deciding 20 “whether violation of a public law or regulation shall be considered in determining 21 liability,” Washington courts turn to the Restatement (Second) of Torts § 286. Barrett v. 22 Lucky Seven Saloon, Inc., 96 P.3d 386, 390 (Wash. 2004). Under this provision of the ORDER - 23 1 Restatement, “[t]he court may adopt as the standard of conduct of a reasonable [person] 2 the requirements of a legislative enactment . . . whose purpose is found to be exclusively 3 or in part (a) to protect a class of persons that includes the person whose interest is 4 invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that 5 interest against the kind of harm which has resulted, and (d) to protect that interest 6 against the particular hazard from which the harm results.” Restatement (Second) of 7 Torts § 286 (1965). 8 3. The FTC Act 9 In evaluating Section 5 of the FTC Act, the court finds that Veridian may not base 10 Eddie Bauer’s alleged standard of conduct on the Act because the Act fails the first and 11 second prongs of the Restatement’s test. Those prongs require that the purpose of the 12 statute must be to protect (1) a class of persons that includes the person whose interest is 13 invaded and (2) the particular interest which the plaintiff alleges has been invaded. See 14 Restatement (Second) of Torts § 286(a), (b). The Supreme Court states that “[t]he 15 paramount aim of [the FTC Act] is the protection of the public from the evils likely to 16 result from the destruction of competition or the restriction of it in a substantial degree.” 17 FTC v. Raladom Co., 283 U.S. 643, 647-48 (1931). “Section 5 in particular seeks to 18 protect ‘consumer[s]’ and ‘competitor[s]’ from ‘unfair trade practice[s].’” SELCO Cmty. 19 Credit Union v. Noodles & Co., --- F. Supp. 3d ----, 2017 WL 3116335, at *5 (D. Colo. 20 July 21, 2017) (quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 (1972)). 21 Veridian alleges no harm from “the destruction of competition,” and it alleges neither that 22 it is a customer nor a competitor of Eddie Bauer. (See generally FAC.) The court ORDER - 24 1 concludes that Section 5 of the FTC Act is not designed to protect either the class of 2 persons that includes Veridian or the interest that Veridian alleges Eddie Bauer invaded. 3 Thus, Section 5 of the FTC Act fails the test under Section 286 of the Restatement, and 4 Veridian cannot allege that Eddie Bauer owes it a duty predicated on this statute. 5 4. RCW 19.255.020 6 Unlike Section 5 of the FTC Act, however, the court finds that, in the context of 7 this lawsuit, RCW 19.255.020 meets the test of Section 286 of the Restatement. RCW 8 19.255.020 states in pertinent part: 9 10 11 12 13 If a processor or business fails to take reasonable care to guard against unauthorized access to account information that is in the possession or under the control of the business or processor, and the failure is found to be the proximate cause of a breach, the processor or business is liable to a financial institution for reimbursement of reasonable actual costs related to the reissuance of credit cards and debit cards that are incurred by the financial institution to mitigate potential current or future damages to its credit card and debit card holders that reside in the state of Washington as a consequence of the breach, even if the financial institution has not suffered a physical injury in connection with the breach. 14 RCW 19.255.020(3)(a).12 The “class of persons” that this statute is designed to protect is 15 comprised of “financial institution[s]” that have incurred “actual costs” related to the 16 unauthorized access of their credit card and debit card holders’ account information. See 17 18 19 20 21 22 The statute defines a “business” as “an individual, partnership, corporation, association, organization, government entity, or any other legal or commercial entity that processes more than six million credit card and debit card transactions annually, and who provides, offers, or sells goods or services to persons who are residents of Washington.” RCW 19.255.020(1)(c). The statute defines a “processor” as “an individual, partnership, corporation, association, organization, government entity, or any other legal or commercial entity, other than a business as defined under this section, that directly processes or transmits account information for or on behalf of another person as part of a payment processing service.” RCW 19.255.020(1)(h). Neither party argues that Eddie Bauer does not fall within one these definitions. 12 ORDER - 25 1 id. Veridian and its putative class of similarly situated financial institutions fall within 2 this “class of persons.” In addition, the particular interest which the statute seeks to 3 protect—the security of the financial institutions’ credit card and debit card holders’ 4 account information—is the same interest that would be protected by imposing a duty on 5 Eddie Bauer with respect to Veridian’s negligence claim. Finally, the harm or hazard that 6 a violation of RCW 19.255.020 causes—actual costs due to the unauthorized access of 7 account holders’ information—is the same as the harm alleged by Veridian in its 8 negligence claim. Accordingly, the court finds that RCW 19.255.020 meets the test set 9 forth in Section 286 of the Restatement. 10 Based on its application of Section 286 of the Restatement, the court concludes 11 that the “reasonable care” standard found in RCW 19.255.020 defines the minimum 12 standard of conduct under Washington law for processors or businesses whose alleged 13 failure to protect from unauthorized access credit and debit card account information that 14 is in their possession causes damage to financial institutions. See Barrett, 96 P.3d at 393 15 (concluding based on the application of the four-part test of Section 286 of the 16 Restatement that RCW 66.44.200(1), which forbids the selling of alcohol “to any person 17 apparently under the influence of liquor,” defines the minimum standard of conduct for 18 commercial hosts whose alleged overservice causes a drunk driving accident injuring a 19 third party); see also Kappelman v. Lutz, 170 P.3d 1189, 1196 (Wash. Ct. App. 2007), 20 aff’d, 217 P.3d 286 (2009) (“When a statute meets [the test of Section 286 of the 21 Restatement], evidence of a statutory violation is admissible on the issue of 22 negligence. . . . And the party offering the evidence is entitled to a jury instruction ORDER - 26 1 consistent with RCW 5.40.050.”) (citing 6 Wash. Prac., Wash. Pattern Jury Instructions: 2 Civil 60.03, at 481 (2005) (WPI)).13 Accordingly, the court denies Eddie Bauer’s motion 3 to dismiss Veridian’s negligence claim on the grounds that Eddie Bauer does not owe 4 Veridian a duty as a matter of law. 5 F. Violation of RCW 19.255.020 6 Veridian alleges a claim directly based on Eddie Bauer’s violation of RCW 7 19.255.020. (FAC ¶¶ 144-51.) Eddie Bauer argues that Veridian’s claim must be 8 dismissed because Veridian fails to specifically allege that it reissued cards to 9 Washington residents. (2d MTD at 25.) The statute states in part that, in the event of 10 certain unauthorized cyber-intrusions, a “business” or “processor” is liable “to a financial 11 institution for reimbursement of reasonable actual costs related to the reissuance of credit 12 cards and debit cards that are incurred by the financial institution to mitigate potential 13 14 15 16 17 18 19 20 21 22 Eddie Bauer argues that the Washington Legislature “provided a carefully limited duty on the part of vendors to protect a card issuer only for costs to reissue [cards] to Washington residents.” (Reply at 12.) First, the statutory language that Eddie Bauer relies is unclear, and the court is not convinced that RCW 19.255.020 limits damages in the manner Eddie Bauer asserts. Nevertheless, the court need not decide that issue at this juncture because the statute also expressly provides that “[t]he remedies under this section are cumulative and do not restrict any other right or remedy otherwise available under law.” RCW 19.255.020(6). Thus, although RCW 19.255.020(3)(a) defines the minimum standard of conduct applicable to Eddie Bauer because it meets the test set forth in Section 286 of the Restatement, the statute expressly does not restrict the remedies that Veridian may otherwise seek in an action based on negligence. Eddie Bauer also asserts that if a Washington vendor has a duty beyond simply protecting card issuers for the costs of reissuing cards to Washington residents, “then RCW 19.255.020 would be completely unnecessary and meaningless.” (Reply at 12-13.) The court disagrees. The remedies that the Legislature provides in the case of violation of RCW 19.255.020 are distinct from common law remedies available in a negligence action. For example, “[i]n any legal action brought pursuant to [RCW 19.255.020(3)(a)], the prevailing party is entitled to recover its reasonable attorneys’ fees and costs incurred in connection with the legal action.” Id. The same is not true for a common law negligence action. Accordingly, the court rejects Eddie Bauer’s argument. 13 ORDER - 27 1 current or future damages to its credit card and debit card holders that reside in the state 2 of Washington.” RCW 19.255.020. The court declines to hold that Veridian’s 3 allegations are inadequate here. Veridian brings this action as a putative class action on 4 behalf of a nationwide class of financial institutions. (FAC ¶ 99.) Veridian alleges that 5 Eddie Bauer is Washington company with approximately 370 stores across the United 6 States and Canada. (Id. ¶ 12.) Veridian asserts that it has more than 209,000 customers 7 throughout the United States, including Washington. (Id. ¶ 11.) Veridian alleges that its 8 putative class of similarly-situated financial institutions cancelled and reissued payment 9 cards affected by the alleged data breach in Eddie Bauer stores. (Id. ¶ 8.) Viewing these 10 allegations in the light most favorable to Veridian, the court finds that it is reasonable to 11 infer that financial institutions in the putative nationwide class reissued payment cards to 12 Washington residents. Accordingly, the court denies Eddie Bauer’s motion to dismiss 13 this claim. 14 G. 15 Violation of the CPA Washington’s CPA prohibits “[u]nfair methods of competition and unfair or 16 deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. 17 “To prevail in a private CPA claim, the plaintiff must prove (1) an unfair or deceptive act 18 or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury 19 to a person’s business or property, and (5) causation.” Panag v. Farmers Ins. Co. of 20 Wash., 204 P.3d 885, 889 (Wash. 2009). Failure to satisfy even one element is fatal to a 21 CPA claim. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 22 539-40 (Wash. 1986). ORDER - 28 1 Eddie Bauer asserts that the court should dismiss Veridian’s CPA claim because 2 Veridian fails to adequately allege the first element of a CPA claim—an unfair or 3 deceptive act or practice. (2d MTD at 27-30). Veridian asserts that its allegations that 4 Eddie Bauer failed to provide reasonable cyber security measures to protect the account 5 information on its customers’ credit and debit cards constitutes either an “unfair or 6 deceptive act or practice” under the CPA. (Resp. at 23-25.) 7 “Because the [CPA] does not define ‘unfair’ or ‘deceptive,’ [the Washington 8 Supreme Court] has allowed the definitions to evolve through a gradual process of 9 judicial inclusion and exclusion.” Saunders v. Lloyd’s of London, 779 P.2d 249, 256 10 (Wash. 1989) (internal quotations omitted). Either an unfair or a deceptive act can be the 11 basis for a CPA claim. Klem v. Wash. Mut. Bank, 295 P.3d 1179, 1187 (Wash. 2013) 12 (“The ‘or’ between ‘unfair’ and ‘deceptive’ is disjunctive.”). “An unfair act is 13 established by evidence that it (1) causes or is likely to cause substantial injury, which (2) 14 consumers cannot avoid, and (3) is not ‘outweighed by countervailing benefits.’” 15 Merriman, 396 P.3d at 368 (quoting Klem, 295 P.3d at 1187 and 15 U.S.C. § 45(n)).14 16 The Washington Legislature directs that the CPA “shall be liberally construed [so] that its 17 beneficial purposes may be served.” RCW 19.86.920; see also Thornell v. Seattle Serv. 18 19 20 21 22 “Washington’s CPA is modeled after federal consumer protection laws and incorporates many . . . provisions of the federal acts. . . . The Washington legislature instructed courts to be guided by federal law in the area.” Klem, 295 P.3d at 1187; see RCW19.86.920 (“It is the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts and final orders of the federal trade commission interpreting the various federal statutes dealing with the same or similar matters.”). 14 ORDER - 29 1 Bureau, Inc., 363 P.3d 587, 590 (Wash. 2015) (“The language of the CPA evinces a 2 broad, rather than narrow, lens through which we interpret the statute.”) Based on the Washington courts’ definition and the liberal construction the court 3 4 applies to the CPA, the court finds that Veridian’s allegations sufficiently constitute an 5 “unfair act” under the statute. Veridian alleges that Eddie Bauer failed to take proper 6 measures to protect account information of credit and debit card holders with respect to 7 its POS and data security systems. (FAC ¶¶ 5, 39, 40-42, 57-62, 71-76, 81, 82-86, 157.) 8 Indeed, “[t]he key wrongdoing at issue in this litigation” is “Eddie Bauer’s [alleged] 9 failure to employ adequate data security measures.” (Id. ¶ 114.) In light of known 10 cyber-intrusion risks and breaches, Veridian alleges that it was foreseeable that Eddie 11 Bauer’s failure to take reasonable security measures to protect the data of payment card 12 holders would result in harm to thousands of customers and the payment card issuers, and 13 Eddie Bauer’s failure did, in fact, result in this harm. (Id. ¶¶ 1, 7-9, 46-56, 83, 93-98.) 14 These allegations constitute “substantial injury” to consumers. See Merriman, 396 P.3d 15 at 368. 16 Eddie Bauer argues, however, that Veridian nevertheless has failed to adequately 17 allege an “unfair act” because consumers could have avoided the risk of data theft by 18 paying for items at Eddie Bauer stores with cash. (2d MTD at 30.) In light of the 19 ubiquitous use of credit and debit cards in all types of commerce, the court finds this 20 argument disingenuous. See, e.g., Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 21 817 (9th Cir. 2007) (Kozinski, J. dissenting) (“Credit cards are ubiquitous . . . .”); Price v. 22 Synapse Grp., Inc., No. 16-CV-01524-BAS-BLM, 2017 WL 3131700, at *4 (S.D. Cal. ORDER - 30 1 July 24, 2017) (“[I]n a modern economy . . . credit card transactions are a ubiquitous 2 feature.”) 3 Further, the court agrees with Veridian that customers had no way of knowing that 4 Eddie Bauer’s cyber-security measures were allegedly deficient or that Eddie Bauer had 5 allegedly failed to implement appropriate software updates or other reasonable security 6 measures. (See FAC ¶ 159.) Without this knowledge, and given the broad adoption of 7 credit and debit cards as forms of payment in our economy, consumers had scant ability 8 to avoid the harms engendered by Eddie Bauer’s alleged security failures. 9 Eddie Bauer further argues that Veridian has not alleged an act or practice that is 10 “likely to cause substantial harm” because inadequate security practices do not by 11 themselves cause direct harm to consumers, but rather only cause harm when the 12 information is stolen by a third party. (2d MTD at 30.) The court agrees with Veridian 13 that this argument distorts the causation analysis under the CPA. (See Resp. at 25.) 14 Courts apply a “but for” proximate causation standard under the CPA, and the unfair act 15 or practice need not be the sole proximate cause of the harm. Indoor 16 Billboard/Washington Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 22 (Wash. 17 2007); see also FTC v. Wyndham Worldwide Corp., 799 F.3d 236, 246 (3d Cir. 2015) 18 (noting that the risk of foreseeable harm from inadequate data security is sufficient under 19 the FTC Act, and an unfair act need not be the most proximate cause of an injury). Here, 20 Eddie Bauer’s alleged failure to take reasonable security measures constitutes an unfair 21 act because it knowingly and foreseeably put Eddie Bauer’s customers and payment card 22 financial institutions at a risk of harm from data theft and fraudulent payment card ORDER - 31 1 activity and this harm allegedly occurred. (See FAC ¶¶ 24, 55, 156.) Because the court 2 concludes that Veridian adequately alleges an “unfair act” under the CPA, the court 3 denies Eddie Bauer’s motion to dismiss Veridian’s claim on that basis.15 4 IV. CONCLUSION 5 Based on the foregoing analysis, the court GRANTS in part and DENIES in part 6 Eddie Bauer’s motion to dismiss (Dkt. # 40). Veridian may file an amended complaint 7 that is consistent with court’s rulings herein. 8 Dated this 9th day of November, 2017. 9 10 A 11 JAMES L. ROBART United States District Judge 12 13 14 15 16 17 18 19 20 21 22 The court need not determine whether Veridian has adequately alleged a “deceptive act” under the CPA because Veridian need not allege both an “unfair act” and a “deceptive act” to state a CPA claim. See Klem, 295 P.3d at 1187. 15 ORDER - 32

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